| People v Harrison |
| 2008 NY Slip Op 04539 [51 AD3d 816] |
| May 13, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gerald Harrison, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubortof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg,J.), rendered May 26, 2005, convicting him of robbery in the first degree (two counts), upon hisplea of guilty, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed thereon;as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, KingsCounty, for resentencing that properly includes a period of postrelease supervision as part of thesentence.
The defendant pleaded guilty to two counts of robbery in the first degree (see PenalLaw § 160.15 [4]), in full satisfaction of a multi-count indictment which additionallycharged him with, inter alia, five counts of first-degree sodomy and five counts of kidnapping inthe second degree. He was promised a sentence consisting of two concurrent determinate termsof imprisonment of 17 years, plus a period of five years of postrelease supervision.
At sentencing, the defendant expressed unhappiness with the plea and with the performanceof his assigned counsel. In addition, he pointed to recently-received discovery material which, heclaimed, suggested that the object he admittedly displayed during the robberies may not havebeen a loaded and operable firearm. The People responded, in effect, that no weapon had beenrecovered and therefore they did not know whether the object was, in fact, a loaded and operablefirearm. Asked for his views, defense counsel stated that he believed the discovery documentspresented an [*2]issue of fact. The sentencing court denied thedefendant's motion to withdraw his guilty plea and for the assignment of new counsel, and thenimposed the promised prison sentence, but without including the period of postreleasesupervision in its pronouncement of the sentence. The court clerk, however, added the promisedfive-year period of postrelease supervision to the commitment papers, which the court did notsign. The defendant appeals.
Contrary to the defendant's contention, defense counsel did not improperly take a positionadverse to the defendant's when he observed that the discovery material presented an issue of fact(cf. People v Armstead, 35 AD3d624, 626 [2006]).The defendant further contends that the period of postrelease supervision added by the court clerkwas invalid and should be stricken. While the Supreme Court erred in failing to include theperiod of postrelease supervision in its pronouncement of the sentence, this error may beremedied through resentencing (see People v Sparber, 10 NY3d 457 [2008]).Accordingly, we must vacate the sentence imposed and remit the matter to that court forresentencing, including the imposition of the appropriate period of postrelease supervision(see id.).
Although the defendant's purported waiver of appeal does not prevent him from challenginghis sentence as excessive (see People vHurd, 44 AD3d 791, 792 [2007]), that issue has been rendered academic in light of ourdetermination vacating the sentence. Fisher, J.P., Angiolillo, Balkin and Leventhal, JJ., concur.